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Master and Servant Law: Chartists, Trade Unions, Radical Lawyers and the Magistracy in England, 1840-1865

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Master and Servant Law: Chartists, Trade Unions, Radical Lawyers and the Magistracy in England, 1840-1865 Published on Reviews in History (https://reviews.history.ac.uk) Master and Servant Law: Chartists, Trade Unions, Radical Lawyers and the Magistracy in England, 1840-1865 Review Number: 1085 Publish date: Wednesday, 1 June, 2011 Author: Christopher Frank ISBN: 9780754668305 Date of Publication: 2010 Price: £65.00 Pages: 292pp. Publisher: Ashgate Place of Publication: Farnham Reviewer: James Jaffe The activities of W. P. Roberts, the 19th-century ‘miners’ attorney-general’, has long been a subject of great interest to labour historians. His significance for the history of British trade unionism was perhaps most clearly highlighted first in Raymond Challinor and Brian Ripley’s history of the Miners’ Association, published in 1968, and then Dr. Challinor’s full-length biography, which appeared in 1990.(1) Roberts, a solicitor from Bath, traveled throughout northern England during the mid 19th century defending workers in numerous master and servant cases. His victories in many of these cases were feted by trade unionists and excoriated by local magistrates. When he died in 1871, the Newcastle Courant reminded its readers that Roberts’ services had once been ‘eagerly solicited … in all cases arising out of differences between employers and employed’. He was ‘a bold advocate’, the paper recalled, ‘and his frequent collisions with the bench became, in his prime, almost a feature of newspaper reading’. In Christopher Frank’s new book, Roberts’ activities are examined once again although this time through the lens of a compendium of cases he fought against the summary jurisdiction of magistrates over disputes involving the law of master and servant. These legal battles occurred not only against the background of a more general debate over the efficacy, extent and legitimacy of the summary jurisdiction of magistrates, but also against the background of the Chartist movement during the 1840s. Given this confluence of events, there was thus ample enough legal and political space for someone of Roberts’ ‘characteristic pertinaciousness’, as the Newcastle Courant characterized it, to help successfully maneuver many of his clients through the mid-century judicial system. The legal terrain of 19th-century master and servant law has been well-documented thanks most notably to the earlier work of Douglas Hay and Robert Steinfeld, among others. The 1823 Master and Servant Act provided for criminal sanctions of up to three months imprisonment for a variety of breaches of the employment contract. Although it is not exactly clear why, protests against these penal sanctions were relatively muted for the two decades following the passage of the Act.(2) However, as Steinfeld notes, the legal terrain shifted in the 1840s and 1850s. At that time, common law courts adopted much more expansive interpretations of the law not only to cover more workers but also to limit employers’ obligation to fulfill employment contracts. These new circumstances found Roberts at the center of the trade unions’ legal struggle against both masters and magistrates. In a series of cases, his most common tactic was to apply for writs of certiorari and habeas corpus in an attempt to bring the cases before the Queen’s Bench. As Frank ably demonstrates, before the passage of the Jervis Acts in 1848–9, which standardized many legal forms, the courts held magistrates to a very high standard when they issued warrants of commitment and declared convictions. Very often, Roberts was able to secure a review of these cases based upon mistakes, omissions, or other ‘technicalities’ and to thereby quash the magistrates’ convictions and sentences. The author’s focus upon the active role of trade unions and solicitors is therefore complemented by a discussion of the response of magistrates to the courts’ actions in striking down many summary convictions. Drawing heavily upon the weekly journal Justice of the Peace, Frank illustrates the degree to which local magistrates registered their confusion and annoyance over the uncertainties surrounding the extent of their jurisdiction in master and servant cases and the requirements necessary to secure a conviction. In a broader context, the author’s analysis of Roberts’ cases rests less upon any significant revision of the received legal history of the Master and Servant Act than upon the specific legal and rhetorical tactics that were deployed during the fight against them. Here Frank shows that the resistance to the Act drew upon a variety of shared beliefs, many of which were counted as among the rights and liberties of freeborn Englishmen. Foremost among these was the right to a trial by jury, but labour’s litigation efforts also brought into sharp relief questions about the impartiality of the law and the composition of the magistracy. Moreover, labour’s campaign against the Act coincided with the Chartist movement of which Roberts was a leading figure. He was arrested, imprisoned and hounded by the authorities throughout the early 1840s, ran as a Chartist candidate for MP in the 1847 general election, and was a close associate of both John Frost, the leader of the 1839 Newport Rising, and Feargus O’Connor. Frank is certainly right therefore to draw direct links between Roberts’ activism in legal cases and Chartist demands for the rights of labour. However, such an analysis may have been usefully expanded here to include some discussion of Roberts’ role in the broader trade union movement of the period. Thus it remains unclear, for example, the extent to which Chartism’s efforts to promote the nationwide affiliation of local unions were reflected either rhetorically or tactically in Roberts’ legal efforts. It is perhaps a bit hyperbolic to argue, as the author does, that organised labour’s role in promoting and sustaining the legal attack upon the law of employment contracts during the 1840s and 1850s has gone largely unnoticed by previous historians. It is perhaps fairer to say that with the notable exception of Robert Steinfeld’s work, labour and trade union historians have often avoided any sustained analysis of both the specific cases and the governing case law of this period. Therefore, Frank’s account of the organised opposition to the 1844 Master and Servant bill, for example, provides an important corrective and the detailed recovery of several important employment cases is a welcome addition to the literature. However, one must be careful not to too baldly overstate the case for the uniqueness of these events, especially since trade unions’ resistance to the inequities of the employment law were noticeable across a very broad legal front and over a very long period of time. Indeed R. G. Kirby and A. E. Musson argued very convincingly many years ago that the struggle for the repeal of the Combination Acts owed as much, if not more, to the organised pressure of trade unions than it did to the parliamentary tactics of Francis Place and others.(3) And, in this long struggle, legal counsel was not wanting. In London during the first decade of the 19th century, Francis Const and Mr. Knapp repeatedly appeared before both magistrates and sessions judges defending combinations of pressmen and compositors, tailors, carpenters, journeymen curriers, and boot-makers.(4) Moreover, it may also be suggested that not all of labour’s legal struggles over the employment contract occurred before magistrates, petty sessions, or the common law courts. Other legal venues were equally accessible to both workers and employers and were equally the sites of conflict over these issues. In London, Birmingham and elsewhere, for example, courts of request tried many employment cases often in the guise of actions for debt. As with the combination laws, such litigation efforts were not new to the 1840s. Well before then, unions such as the London compositors of the 1820s and 1830s, encouraged and supported such legal action before the courts of request. Indeed, as Malcolm Chase rightly suggested some years ago, the study of the early decades of the law’s impact is perhaps in much greater need of examination than its later years.(5) Therefore, while the extent and publicity of Roberts’ actions may have been unique in the 1840s, he was indeed following in the footsteps of many who had gone before him and whose efforts have yet to be fully appreciated. Although the book focuses on the efforts of Roberts, the author makes clear that during the 1840s Roberts’ efforts were complemented by others who also took up employment cases. Attorneys and barristers in many parts of the country worked to defend employees from prosecution and free them from imprisonment. Whether this was the result of a surfeit of ‘briefless barristers’ or ‘pettifogging attorneys’ is not an important issue here although those charges were certainly hurled against Roberts and others who defended workers against their masters in the courts. Perhaps the most interesting of these men, however, were two London barristers, W. H. Bodkin and John W. Huddleston, both of whom regularly appeared before the Queen’s Bench in actions initiated by Roberts. It is unfortunate that an explanation of this linkage is not developed further. It appears that both men were called to the bar by Gray’s Inn and both were noted for their expertise in poor-law cases, as was Francis Const, incidentally. Bodkin was perhaps most well-known for his active participation in the Society for the Suppression of Mendicity and his actions there marvelously lampooned by Thomas Hood in his Ode to H. Bodkin, Esq. Perhaps even more interesting is the fact that both Huddleston and Bodkin served as Conservative MPs, Huddleston for Canterbury and Norwich and Bodkin for Rochester. Moreover, both received knighthoods under Conservative administrations: Bodkin under the Earl of Derby’s administration in 1867 and Huddleston in 1875 during Disraeli’s tenure as prime minister.
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